Trump Administration Rolls Back ACA's Birth-Control Coverage Mandate

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updated on Dec. 22, 2017

Update:
District Courts Block Trump's Contraceptive Exemption Rules

In December 2017, two U.S. district court judges
issued separate rulings against the Trump administration's rules allowing businesses or nonprofits to obtain exemptions on moral or religious grounds from the requirement that employers subject to the Affordable Care Act must provide no-cost contraceptive coverage to employees.

The decision followed a ruling from a federal judge in Philadelphia on Dec. 15 that held the rules to be substantively improper.

The U.S. Justice Department defended the rules in court. A spokeswoman said that the agency disagreed with the rulings and was evaluating its next steps.

The Trump administration will allow employers to claim a religious or moral objection to an Affordable Care Act (ACA) requirement that employer-provided health benefits include no-cost contraception coverage for women, the White House announced on Oct. 6. A separate memo from Attorney General Jeff Sessions outlines a broad defense of religious liberty for individuals and businesses. These announcements were praised by conservatives and denounced by liberals, and are expected to spur future litigation.

Several religious groups, which battled the Obama administration for years over the controversial requirement, welcomed the action. Women's rights organizations and some medical professionals said it was a blow to women's health, warning that it could lead to a higher number of unintended pregnancies.(Washington Post)

In a separate action, Attorney General Jeff Sessions on Oct. 6 issued a guidance memo instructing federal agencies and attorneys to avoid actions that would unduly burden people from practicing their faith. The memo directs
federal agencies to observe 20 principles of religious liberty, such as "Americans do not give up their freedom of religion by participating in the marketplace" and "Freedom of religion extends to persons and organizations…even businesses." The policy does not create new law but rather interprets how the government should construe the Constitution and existing federal law. Critics said the memo could provide a loophole to ignore federal bans on discrimination against women and LGBT people. (BuzzFeed)

Moves in Line with Trump's Executive Order

In June, President Donald Trump issued an
Executive Order Promoting Free Speech and Religious Liberty, which prompted government agencies to explore religious-based exceptions to the ACA's contraceptive mandate. Louise Melling, deputy legal director of the American Civil Liberties Union, said that "any rule that allows employers to deny contraceptive coverage to their employees is an attempt at allowing religion to be used as a license to discriminate. We'll see the Trump administration in court if they try to follow through on these plans." (SHRM Online)

CMS Issues Memorandum on Contraceptive Exemption Notices

On Nov. 30, 2017, the federal Centers for Medicare & Medicaid Services (CMS) issued a memorandum that addresses notice requirements relating to exemptions from the contraceptive coverage mandate for nongrandfathered health plans sponsored by employers with religious or moral objections to providing certain contraceptive coverage as required by the Affordable Care Act.

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Members may download one copy of our sample forms and templates for your personal use within your organization. Please note that all such forms and policies should be reviewed by your legal counsel for compliance with applicable law, and should be modified to suit your organization’s culture, industry, and practices. Neither members nor non-members may reproduce such samples in any other way (e.g., to republish in a book or use for a commercial purpose) without SHRM’s permission. To request permission for specific items, click on the “reuse permissions” button on the page where you find the item.